Kenneth Clarke is a former Chancellor of the Exchequer, Education Secretary and Health Secretary. He is MP for Rushcliffe, and Chairman of the All-Party Parliamentary Group on Extraordinary Rendition.
Earlier this month, the Government apologised for the UK’s role in the extraordinary rendition of Abdul Hakim-Belhaj and Fatima Boudchar to Libya and the “harrowing experiences” they suffered. The Government acknowledged that UK’s actions “contributed to [their] detention, rendition and suffering.” The apology is welcome and long overdue – but it is shocking that a British government got itself mixed up in such practices. We must be sure that there are policies in place strong enough to guard against this ever happening again.
After apologising on behalf of the Prime Minister in Parliament, the Attorney General gave assurances that “the problems of the past will not be repeated” and rightly referred to the Consolidated Guidance – the rulebook intelligence officers must follow when there is a risk their actions may enable torture or mistreatment of detainees – as a key policy in place to prevent such recurrence. When it was developed and published in 2010, the Consolidated Guidance was a welcome step forward in transparency and protection of human rights. However, it is flawed and needs to be strengthened to ensure that it properly protects against rendition and unlawful detention.
In 2016, Sir Mark Waller, the Intelligence Services Commissioner, published a report criticising the Consolidated Guidance and recommending that it be reviewed. The Government confirmed in November 2017, in response to a question I asked, that this review was underway and that it had consulted government departments and intelligence agencies. This is a step in the right direction, but I believe the review process needs to include the views of others with experience in this field. I wrote to the Prime Minister in February this year (along with other members of the All-Party Parliamentary Group on Extraordinary Rendition, which I chair) asking her if she would consider recommendations made by the All-Party Group for improvements to the Guidance.
We believe that much clearer guidelines are needed for officers who believe a detainee is being held or transferred unlawfully. In fact, most of the protections that the guidance currently offers from torture should also apply to unlawful detention and rendition. Sir Mark Waller made similar criticisms in his 2016 report, saying, “the application of the Consolidated Guidance to risks of unlawful arrest or detention or procedural unfairness is not as clear as it should be,” describing the relevant text as “inconsistent and vague”. He rightly observed that “wholly unlawful or arbitrary deprivations of liberty are no less important or serious than torture.” Extraordinary rendition and arbitrary detention undermine the rule of law and open the door to the use of ill-treatment and torture, the very practices the Guidance is seeking to prevent. This was clearly illustrated in the case of Belhaj and Boudchar, who were rendered to Libyan jails notorious for torture.
What’s more, there is a risk that the Guidance as currently worded, could give the impression that ministerial authorisation grants a derogation from the requirement that officials obey the law on torture. This is both ethically and legally wrong – the prohibition on torture is absolute in all circumstances.
The current review of the Guidance is particularly timely. With Donald Trump having pledged to reintroduce waterboarding and “a hell of a lot worse”, it is more important than ever that the UK has as robust a policy as possible to prevent future involvement by our intelligence services in such activities. The Prime Minister herself has acknowledged the importance of the Guidance in this context: when asked about intelligence sharing in light of Trump’s comments, her spokesperson rightly said, “We don’t condone torture, inhumane treatment in any form. There was consolidated updated guidance published in 2010 on this…”
I believe that Britain needs strong and effective intelligence services. But I also believe that Britain can demonstrate that this can be combined with decent and ethical standards of civilised conduct. The practices of unlawful detention, rendition and mistreatment of detainees not only make those involved potentially criminally liable, but also undermine Western credibility, hindering rather than helping the fight against terrorism. Britain must not get involved in such practices again.
So I welcome the Prime Minister’s recent response to my letter, in which she confirmed that the review of the Guidance would need to “revisit the [All-Party Group’s] previous proposals, along with any other comments,” and I hope action is taken to make the improvements we recommend. The Prime Minister’s commitment to considering our proposals and those of others is a positive sign – a review process that takes into consideration the views of individuals with knowledge and expertise in this area can only serve to strengthen the Guidance. And, if we are to be sure that there will be no repeat of the shameful involvement of the UK in rendition and torture, strengthened it must be.